tv America the Courts CSPAN February 27, 2010 7:00pm-8:00pm EST
victim does not affect the central issue in this case, whether the commission ever articulated or applied changed policy with respect to brief and unintended images followed to the super bowl broadcast. we abolished at the language in the decision requires -- acknowledged that it requires the circuit court, but they are made in a different context, as they were here. the rules were never articulated or applied, they were not mentioned under review in this case or any other fcc decision for the purposes cited here. the supreme court and fox simply had no occasion to apply the decency policy to visual material. second, even if the fcc policy change were to survive scrutiny
under the act, nothing may be imposed where this statement are unclear where the agency itself struggles to provide a reading of the rules. in cases such as trinity broadcasting versus the fcc, they have applied this basic principle of the process, as has the commission itself. here, but the fcc may not impose liability on cbs for a statement that went undiscovered even by the commission until late 2006, more than 2.5 years after the super bowl broadcast. this case is entirely distinguishable on this basis alone from fox. no fine was imposed. no such argument can be made in the case. this court's decision is further supported by independent grounds
that likewise are not affected, including the holding that the commission incorrectly impose liability on cbs for the independent actions of janet jackson and justin timberlake. under section 503 of the communications act, or whether it wants to define a reckless and decency act. that is fine. there is simply no reason to encourage cbs and that proceeding, and no reason to punish them for the lack of clarity. before involving cbs in such extended proceedings, this court should first rule of the arbitrary nature of the nebulous factors that ploy to make indecency findings as well
as the fact that it violates the first amendment under pacifica. has been 6 long years since the 2004 super bowl, and the effect extends significantly. we have come a long, long way. as justice ginsburg wrote in fox, there is no way to hide the long shadow of the first amendment cast on what the commission has done. going to the first argument, nothing in fox alters this court's initial finding. the language that is quoted is in the background discussion and can be deleted without seriously impairing political foundation of what the court has decided it
is language not essential to the outcome. the supreme court focused on the 2 dozen 6 orders of the fcc as well as the 2004 golden globes order, saying that those expressions of policy did recognize the expressed change from the prior policy and ultimately the court upheld the decision under the ada narrow lead because they found out the words used in fox had the power to offend, and that isolated words could be considered offensive, and even isolated words could be shocking as what the court described as a first blow. >> to make a strong argument that the language we have identified and both parties have been identified might be characterized as background, but it is supreme court by crown, and how do we ignore it, particularly when it seems to
fly directly against what this board found? let's assume we still think our initial interpretation was the correct 1 and that your reading of fox is the correct one, we still are butting our heads against what the corporate -- supreme court said about pacifica. if you could just spend a few moments to tell us why we should ignore that. >> we're asking the court not to ignore the reference to the 1987 pacifica decision. and how those decisions got presented to the supreme court to understand what this means in
light of the earlier decision. in looking at supreme court let which similar to this -- language is similar to this, this court has said that we must not be guided by a single sentence. we must find the situation that the court dictum anticipated. in this case, looking at the reference to the 1987 pacific a decision, it is important to look at what those decisions actually were. the fcc has historically defined policy with indecency with case comparison. simply looking at the sentence that the fcc pluck out in the fox cases does not tell you what the policy was. two different complaints. 1 involving an extended discussion of sexual activity in
the presentation of a play on the radio, and the second 1 was dismissed, involving brief, unscripted, and spontaneous descriptive language that the court than distinguished and said it was not going to find actionable. it was not that the fcc was distinguishing literal and non liberal, or images from a language. it was simply saying that it refers to expletives and dismisses a complaint under well-established policy. it was talking about what the commission had always been talking about in the past, and intended -- unintended, unscripted outbursts. >> what is a literal description or depiction, and what is a non liberal expletive? where in the fcc opinions or introspection is there a depiction of how we find that the expletive could be defined as an exclamation. i did not know if it was words
or there could be an image. i do not appear -- i do not know. >> you have put your finger on 1 of the problems, because the fcc had never confronted the issue until the golden globes case where it was trying to distinguish a staff decision that said the words used in that case were use to name nonliteral -- in a nonliteral way. there is nothing in the past that try to define liberal versus nonliteral, and that is why it appeared in the fox decision. on review before the second circuit and ultimately before the supreme court, those decisions sort of got wrapped into 1. so the staff decision about bono's nonliteral use of the word became part of the court's analysis, but it was never part of the history of the fcc
decision making in this area, and it certainly was not part of the 1987 pacifica order. but because the supreme court was looking at the exclamations that came back together in the omnibus quarter of 2006, it looked at this issue among liberal expletive. -- of a nonliteral expletive. >> what is the difference between liberal and nonliteral for expletives? >> as i understand it, the way the fcc has referred to it is to say if a presentation of languages actually describing sexual or excretory activity, that is liberal usage. whereas with other context, it is not actually referring to that activity but it is using it as a euphemism, and because of that is still continued to be
the omnibus remaned order. but that is where it is explains a change in policy. that is what they're trying to get to now, to say if you are dealing with images, it is necessarily a liberal image, but that is not the policy from the past, which has treated it differently. as this court pointed out in prior decisions, that is because of 1654 itself. it does not distinguish between the two, and instead turns to utterances. so the commission has tried to say that images are different by necessity, but you will not find that in any prior fcc case.
to the definite -- so the definition has become the fifth generic -- dictionary definition. >> we did say that they did not differentiate between different types of artest material, images and words. so it is treating both of those categories the scent. >> that is right. suburb relevant distinction has been, as the commission described in 1987 and route, whether it is spontaneous, scripted, plant, whatever. the cases cited overtime break down in those categories. >> if they are treated the same, how we analyze the categories? is it the fleeting nature of images of words to focus on, or should we consider somewhat of
a contextual analysis to determine whether words or phrases are actually indecent? >> i think it is important to use contextual analysis, but as that term was understood originally and applied by the fcc. >> it is not just the fleeting nature of the words. what matters is whether they are a graphic, offensive. >> is in the way that the supreme court was dealing with it and the fcc argued the case at the time. is saying that dealing with material that is not planned, where you have a breaking event where there is no time for editorial judgment, it would not be fair to apply a policy against the broadcaster. that is the contextual factor that the fcc had argued to the supreme court and supreme court
accepted, and ultimately what the contextual factor is, in the 1987 pacific order and others, those working textual. it is a content based notion of conceptual factors, leaving the fcc free to apply those factors in any way it chooses. >> that sounds very persuasive to me. that is not what the supreme court said in fox. and i think your argument is intriguing, but before we finished through with that, could we go back to the articulation of the standard, because as you said in the beginning, either on the articulation basis or applied basis, you would prevail here?
again, tell me how i deal with the language in fox that says deliberate and repetitive use is 8 requisite to a finding of indecency with a complaint focuses solely on public nonfederal -- nonliteral expletives? >> that was taken literally and quoted to the supreme court, and the court quoted it to the background section. i think the courts should look at the context. >> we are not to read it literally? >> the key is, what is an expletive. the supreme court is not talking about what an expletive is. the sec tried to say that is confined only to a literal
meaning, but if you look back to the decision it has reference to an " it, the relevant distinction that the fcc was drawing was that it was unplanned, unscripted, and unintentional, not just because it is brief. the relevant factor for material policy was the fact that it was not with the broadcasters set out to do, so it would not be fair to apply the standard here. therefore, the fcc could not draw the distinction and argue that in front of the supreme court and have the decision made. >> fox talked exclusively about language.
>> i think the broadcasting is neutral. it does not cite the pacific bell language as a change in policy. the young broadcasting also supports that export to being unplanned, because the analysis of the fcc was that this was really not an intentional, because the organization brought in individuals who were going to be nude under their costumes, who were stopped stage to perform their act. it was not always implied -- >> is it a textual analysis or a fleeting analysis? wasn't the fleeting analysis
part of the contractual analysis with pandering and graphic display? and if that is right, does that not undermine your argument? >> not necessarily. what the commission said about distinguishing the cases was to say it did involve the same kind of intent were planning of exposure. but even the supreme court's preference to the order is considered to salvage the argument, it is still insufficient to apply in this case to impose, because of what is recognized and trinity broadcasting company. in that case in cases cited in supplemental reading, they explained that even it it is sufficient to satisfy the
explained change in policy, it is not sufficient to impose a penalty. >> so if the third circuit got it wrong, how could cbs be expected to get it right? >> absolutely. it really is unclear to broadcasters, to the point of viability, for them to anticipate a change in policy that did not even occur to the fcc until the third or fourth round of briefing and decision making in this area. without reason, the differences a wall between fox and this case justify reversing the fcc. >> just let me follow-up on this for a second. was this argued before the second circuit, the inconsistent application?
primarily i understand it was a vagueness issue that was the focus of the argument there. >> the most recent argument? >> yes. >> in the most recent argument, and mr. lewis can tell you much more because he was arguing that case, the most recent argument focused primarily on the vagueness issue and the constitutional question, as well, since the court and fox did not a constitutional issue but essentially invited the court to look at the constitutional issue. >> should we wait that determination? >> i do not think it is necessary. either on the apa issue or because of the due process question, this court can come away from its earlier decision without getting into the constitutional issue. however, because of the significant issues involved, it
would not be a bad thing for this court to get guidance both for the fcc and all of us on constitutional issues. >> i gather there has never been an enforceable order issued based on an image? >> actually, if you go back to about 1988, there was the first time the fcc issued a fine, as far as i'm concerned, for broadcasting, and this was the broadcast of an art-rated movie on a local television station. the fcc issued a notice of apparent liability but quickly rescinded it based on the review of the overall change on policies and impact. 1 thing that the fcc sent a public notice about is that it imposed this fine because the images were not wasted, they
were not -- >> with the fleeting nature of the words or images, we did mention in our underlying opinion, we laid out that in its 2001 policy statement, the commission described the fleeting nature of the words or images was but 1 factor, and there were others. a question to you is, isn't that statement sufficient to put cbs on notice? >> in isolation, perhaps. the same is true for the safe
harbor. it is not actionable if you put on information considered to be in decent after 10:00 p.m.. it would not apply to something that's safe harbor. >> community is what you see on television. it happened, it was for a sudden, it was cryptic. >> for the unexpected, that is really what the policy statement was. it was not changed by the 2001 policy statement, which laid out various factors. the last time, they chided the
fcc for making those references to images out of context, so otherwise the statement simply confirm the commission has treated images and words identically in the history of its broadcast enforcement policy. >> it seems fleeting, maybe, very quick. but there is fleeting, then there is fleeting. [laughter] >> there is, and in this case, it was 9/16 second, and they demonstrated that it was truly unplanned and unexpected on cbs' part. there may be other circumstances that showed was not so unexpected, which is what they're trying to get at in the case, and that is not something unexpected. it is something that brought people into the studio. i am not trying to say that business service something that would be indecent, but something
done that may not be fleeting for something in the super bowl. >> in the inconsistent application argument, my understanding of the fcc position is that yes, they have declined to go ahead and press cases for fleeting images, but in doing so, at least in the great majority if not practically all, they have done so under contextual analysis, waving fleeting as against the graphic part and the pandering part. and that has been the reason -- >> would you please put the light off. i can see we are going to overtime here. what is your response to that?
>> if you look at the places in which they dismiss complaints, it goes back to the original factor in the 1975 and 1976 pacific orders. it went unexpected. that was the entire defense for the indecency policy, saying that they understood it was interesting on an area that may involve very significant first amendment rights, but in exchange for that lack of clarity, they applied what they describe as a cautious enforcement policy, and part was
not to enforce the law in those cases where the broadcaster was caught off guard and could not be blamed for not being able to exercise editorial judgment in the short time available. so all of the decisions that you reference refer to the 2001 policy statement really drew the same line, looking at the fleeting nature in context of whether or not it was something unexpected with the broadcaster. and again, the last time you looked at the explanation, the 2001 policy statement, it says when read in its original context, this sentence does not support the commission's assertions here. the commission has simply substituted a new rationale and the wake of the global case for the earlier decision to involve including material. >> i take it that obviously you
would like us to essentially reaffirmed our original decision. if we do not agree with you on the articulation of fcc policy, then you would like us to find that they applied that consistently, and there are due process concerns there. am i correct on that? >> yes, sir, and if the court does disagree on issues, i might take up such suggestions that we wait for the circuit to go forward. that is the county up to my
answer -- caveat to my answer. if they disagree, the second circuit may be helpful. but yes, there are grounds that if the court disagrees it would still be unfair to hold cbs responsible for the broadcast. >> what about the bigness issue? you would want us to press ahead with the consideration of vagueness? >> yes, your honor, and that takes two forms. both as a substance apa issue, because it is inconsistent and standard less. especially the set down in pacifica. >> but spent just a minute, what
would make it less standardless in your view is essential if the policy deals with the graphic nature of the talk with the image, the repetitive part, but extensive news, the fleeting as. >> i think the easiest way to do that is to pattern something where you have distinct standards. in applying the miller standard, apply the 3-prong test to the issues, each of which has to be met. in the fcc revision as applied to indecency standards, it is argued that there are various factors, the graphic nature of the material, whether it is pandering.
they all interrelate so you can essentially find what every what -- whatever you want. 1 factor outweighs the other. it actually requires it to be a test rather than a review of the commission, saying 1 factor simply up with another without any further explanation. battle of would make it clearer -- that alone would make it clearer. i do not know if it will be sufficient to supply the supreme court on the vagueness issue, but it would be an improvement. >> with the graphic nature and pandering, is there some difference? >> the fcc is entitled to some deference. if we're talking about constitutional questions, then no. if we're talking an interpretation of the fcc's prior policies, then this court
would be deferential, but not to the point that it except -- accept a post up rationalization for what it has done and the past. -- a post hoc rationalization for what it has done in the past. >> we decided to remand this matter to the fcc, and we decided that minimal recklessness was the standard for the fcc. the statute, 1462, a bleak, says willful conduct, which is a higher standard. can you comment on what standard should be the correct standard, and if we should remand the case for decisions? >> as i said, our view is that a revamped -- remand is not necessary, because particularly
due process questions, it is really unnecessary. that being said, if the sec goes forward -- fcc goes forward, it should first clarify whether it is proceeding under 503b1b or b1d, which would define whether or not the standards applicable applied. there is a good analysis of this issue, saying the higher standards apply that require actual showing of intent. in the earlier opinion, talking about and of recklessness that apply, decided osborn versus ohio -- they cited that case, saying you can get recklessness from a general statute and salvage a, say, a criminal
statute on child pornography. it relates to the question of reasoning, the secondary decision in osborn which reversed the conviction in that case because the standard had not been applied to all elements of the defense. this underscores a point of judgment. >> i understand that willfulness is easier than reckless, reckless conduct. >> i was talking about recklessness in the context of actual intent or reckless disregard. the opinion was somewhat less than that. the standard should be willful
blindness. i think that is the standard should apply for the same outcome. it could apply to all liability, the decision to have whether or not the court results in what the commission decides to do, it would reach the same outcome here, certainly. i think the record fully demonstrates that whenever else is going on, there was not recklessness. they did not approve the plant or have knowledge of the live
going to happen until 1987. the commission had applied the first broadcast indecency rules in a narrow way. they virtually limited enforcement cases which actually contained repetition of the precise expletives that were in the call issued in the supreme court case. in 1987, the commission changed its policy to say, look, that is too narrow an interpretation. we are going to make clear, we are announcing to our regulators that all longer but we have such -- no lager but we have such, but apply the analysis to a firm and it proved pacific itself, sexual or excretory
activities. cover, it made clear that it preserves repetition requirements that they had been applying to a narrow category of words and not literal expletives. it is clear from 1987 that is what happened. you do not have to take my word for it. but it is precisely this change in explication of policy and the supreme court decision in that case. so in page 18 07, although they have expanded beyond repetitive issues, it distinguish between a liberal and now liberal -- literal and nonliteral, but it
must be examined in context, finding in decency when a complaint focuses solely on these number all acts. nonliteral acts. they created a car out for a limited class of words, and words alone. so in the case between a literal or nonliteral expletive, the point is, that is a battle in the class of words. images were never subject to that exception. when 1 looks at the actual distinction that the commission has set forth, it went between nonliteral and descriptive. and if 1 were to try and fit
images into those categories, you would put them on the descriptive side of the line. the exception only lives nonliteral expletives. images are not expletives, and they are not nonliteral. the description in pair of 13 -- paragraph 13 confirm to we have known all along. the commission expanded, and there was 1 limited car out that was eventually eliminated. and that is why it is important to read the fox decision, because that was simply an aside by the supreme court. that description of policy was critical for the affirmation of
the apa power to choose a policy. the underlying assumption talked about the agency's reason for expand enforcement. it was entirely reasonable. it made no sense to distinguish between liberal and now little uses -- literal and nonliteral uses of words. so they could not reach the decision. and the fox case, they could not do it without describing what the park policies had been -- prior policies had been. and that background section discussion was critical.
in this case, fleeting materials policies are nothing. the commission order cannot be invalid on the basis of policy. >> let me ask you a question. he said looking back that it is clear that this is words and words of love, and i am not sure where it says that, but it seems that in broadcasting, there was the opportunity, meaning in hawks and pacifica -- in young, we're talking about nudity. and there was an opportunity to say that spoken bulgaria cannot analogized to that display of a person's sexual organ. that is what you say in your first free -- brief.
but in young broadcasting, the commission addressed the fleeting nature of exposure shear, saying it occurred for less than a second and was sleeping. -- fleeting. and second, we reject other instances that the commission has ruled remarks did not meet the indecency definition. in footnote 35, explains how the expletive was not intended to pander. but it drew no distinction between an image of nudity that is fleeting and an expert to that is fleeting but instead they are all really groups together. they are the same. and not pander or titillate, we
will find differently. it probably opened the door to golden gloves but did not have the opportunity to say that nudity is different. it did not. it said this fleeting exposure is different from the other fleeting expletive because here it panderers. so as to say, a spoken bulgaria cannot be analogized -- vulgarity cannot be analogized. whereas here, they do not throw up any distinction of all. >> actually, the decision does draw that distinction.
>> because it is moving to the next step and saying if those expletives and footnotes had been pandering, those expletives, although fleeting, may have been problematic. where does it exist in cases involving nudity? >> as i said before, confusion stems from the fact of textual analysis. >> fleeting is relevant in nudity and expletives. >> it is exception, and no further analysis needs to take place. so what we have here -- >> here is what the policy was.
we will examine material and put it through contextual analysis, a number of factors. the second factor is if fleeting is relevant or words and images. in 1987, it was made clear there is a narrow exception that applies to nonliteral expletives. it specifically said that descriptive words would fall outside the exception. >> what is a nonliteral expletive? >> basically, it threatens to use of an expletive to describe sexual activity. so that distinction, and those
reasons -- like what george carlin said, which is really the context that we wanted to make clear, that it was not a diversion, we wanted to have it. but with regard to everything else, we expand enforcement and textual analysis. and there are some words as well, descriptions and depiction. so no surprise that after 1986, the commission applied the same analysis, and that is what it was implying. so if you are going to take mr. corn-revere's argument, it took so much time to come to the conclusion that this was
indecent. >> anything other than words or images that were fleeting? >> there is the example "schindler's list." fleeting images or material is a subset, and narrow subset of the indecency cases. what cbs has to show is that there was an exemption to contest will analysis that gives them a true path, because the image was pleaded -- fleeting. it never applied to images. once you get contextual
analysis, cbs does not make a serious argument if they do not have an exception, findings were in decent under the analysis. because of the other factors, they outweighed. it is easy enough to say that. people are around a table, they say, ok, we will have janet jackson's costume ripped. no 1 could make the argument that it would have been unreasonable to find that in decent. so cbs has no objection. to make a different argument, this is confusing, and the
commission has acknowledged that they know the policy was a certain way. >> it seems that the fleeting material exception seems to be the norm, not the contextual analysis. >> what was the norm was the entire cases, for reading material was not indecent. but all the cases are perfectly consistent with the commission. >> that seem to be the case with george carlin. they all have to do with fleeting exceptions. >> the bono and richie cases
were words cases, and that is the whole point. yes, they did change policy with returned to deleting expletives -- >> what case says images are different from words. the fcc said ward are different? -- words are different? >> defect is -- the fact is, they apply contextual analysis to images. the burden is really on cbs, not the commission. this court disagrees and has come back with recognition that there was an embodiment of that
, a fleeting material policy across the board. the distinction is entirely inconsistent. but in the case that came before the super bowl, its stated exactly that. down to the fleeting image. this court says that was a divergence from prior policy, but there was no prior policy. a clearer statement was in 1987, and now confirmed by the supreme court.
i think cbs had notice in 1987, but that also out that lee had notice of what can round before. -- definitely had notice of what came around before. >> if that had not been there, the fleeting nature of the image would have in just fine, right? >> the nature of the image is stuff in the background. >> but the pandering, the titillating was the only basis on which the fcc distinguished it from other remarks in a live, unscripted broadcasting. >> yes, because there were other factors. it is not the only factor. in some cases, the ballots would
come out differently. >> some words or images were fleeting, and have they been penalized, exclusively fleeting images or words? >> the fox case involves certain, isolated words. >> is this the first case where the commission has determined that the conduct was fleeting? >> it is a case where they tentatively made that determination. but it is not often confronted with the case with the image is nonetheless indecent. >> it is just that there is a real concern to avoid excessive punishment that this spontaneous so in that way you faber the
underlying opinion. >> there are two ways of looking at this case. did they really determine this about the super bowl? and they can make the argument they had no idea that the actions would cause this kind of fear and they would be in that position. there was a considerable alarm about differences from the audience and visual script, concerns in the record, talking points about the nfl commissioner.
the most important thing was janet jackson's choreographer had said there were shocking moments, and cbs had to investigate those statements. there was evidence they had the ability to impose a video delay system. on the halftime show, they have an audio delay system. it was no good at all once he took her top of. since they had no video delay, but they had no -- they had no reason of preventing it. this intensifies both under the
commission and the statute to hold cbs libel at least for failure to implement a video delay system. this court says cbs argues they had to invent the wheel. all we ask here is that we allow ourselves to explore the issue. and it footnote 13, which discusses the video delay system, cbs site to its own press release the day after the super bowl -- >> what would be the point of remaned? >> two of them. this court was not convinced
that cbs was able to use of video the way next week. 1 point would be forced to explore that question. it seems odd to say a video delay system was not available. >> it is pretty much the norm now days, isn't it? >> i do not know. he would have to ask cbs. -- you would have to ask cbs. i think that it should be the norm the second thing is with interpretation of b1b and b1d, it does not contain the willfulness language.